Fair Use or Abuse?
An author’s take on copyright law

by Jonathan Taplin / © 2017, Los Angeles Times. Distributed by Tribune Content Agency, LLC.

Suppose a band spends months making an album in expensive recording studios, and the band’s record label releases the album on iTunes. Imagine that by the end of the first day, all the music has been posted on YouTube, where it is available for free.

  Now suppose that the following day, the record label files a “takedown notice,” asserting copyright infringement and requesting the music be removed. Within a week, the work is taken down. Two days later, the album appears on YouTube again, posted by a different user.

  So begins the copyright holder’s game of whack-a-mole.


What’s legal?

  The posting of content by users who do not hold the copyright for it is perfectly legal, under the “notice and takedown” provision of the Digital Millennium Copyright Act [DMCA]. It’s legal even when the copyright holder already has filed a takedown notice, as long as the work is posted by a different user. Takedown notices address instances of infringement—individual videos posted to YouTube, say—but they don’t apply generally to the actual content.


They keep popping up

  YouTube, Google and virtually every pirate site on the internet invokes the DMCA, over and over, to avoid prosecution for hosting content without permission from the copyright holder. Google received about 2 million takedown notices every day in 2016, according to the Silicon Valley Business Journal.


A call for change

  There is a growing movement to change this. Over the past few years, record companies, musicians’ rights groups and Hollywood studios have been pushing to amend copyright law so that websites like YouTube and Facebook bear the responsibility for keeping bootleg content down, a concept some are calling “notice and staydown.” In this approach, it would be up to the websites—once they have been notified—to remove unwarranted content whenever it reappears.

  In response to this movement, many tech companies are encouraging their users to employ the doctrine of “fair use” in order to fight takedown notices. This is a gross distortion of the concept.



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